APPEAL from the Circuit Court of Cook County; the Hon. ABRAHAM
W. BRUSSELL, Judge, presiding.
MR. JUSTICE HALLETT DELIVERED THE REVISED OPINION OF THE COURT UPON DENIAL OF THE PETITION FOR REHEARING:
December 28, 1973. Revised opinion upon denial of rehearing
The plaintiff Freed appeals from an order striking and dismissing with prejudice his fourth amended complaint, leaving a counterclaim against him still pending. Words of finality render the order appealable.
In November of 1969, a written lease, for occupancy when the premises were complete and running until April 30, 1975, for a building loft to be used for the sale of objects of art at a rental of $675 per month, plus certain specified tax increases, was signed by the plaintiff as lessee. It was also signed "Maurice Young, Lessor," at the end but in the introductory heading the lessor is described as "Maurice Young, authorized agent in this behalf." By its terms, it incorporated a three-page typed rider signed by Freed as lessee and by "Maurice Young, Lessor."
Freed moved in after the premises were available in April of 1970, and paid rent under the lease for a little over a year.
On April 6, 1971, he filed a complaint against "Maurice Young, Agent" in which he set up said lease, his occupancy and payment of rent thereunder, alleged that because of inadequate elevator service, heating and air conditioning, he had been constructively evicted, alleged that Maurice Young had no title to the demised premises and no authority "in writing" to lease them for more than 1 year, and sought a declaratory judgment that the lease was not enforceable, plus $10,000 damages and the enforcement of a lien for that sum on the premises. On May 3, 1971, he filed an amended complaint along the same lines.
On June 30, 1971, Freed vacated the premises, returned the keys to Young, paid the rent through that date and has paid nothing since. The premises remained vacant until June 1, 1972, when they were rented to another tenant for $560 per month, $1,000 being allowed for clearing and $1,000 being paid as a commission.
On July 5, 1972, a second amended complaint was filed; and then a third and, on July 19, 1972, a fourth. In Count I of the latter it again alleged the execution of said lease, his occupancy and the payment of rent thereunder, that he was constructively evicted by virtue of the inadequate elevator service and "out of balance" heating and air conditioning which adversely affected his sales and that he finally vacated the premises on June 30, 1971; that he had had a $1,000 security deposit and had expended large sums in promotion, rental, wages and operating expenses; and prayed judgment for $35,000.
In Count II, it is alleged that Young has never been and is not now the owner of the title to the demised premises "nor the written authorized agent of the title holder"; that the owner was and is the American National Bank & Trust Company, as trustee under a land trust; that the purported lease is not signed on behalf of the party to be charged, as required by the Illinois Statute of Frauds relating to leases for more than 1 year; and that the lease is therefore unenforceable. It prays that a declaratory judgment be entered holding that the plaintiff is not obliged to pay rent after June 30, 1971, when he vacated the premises. He also seeks the return of his $1,000 security deposit.
Count III challenges Young's counterclaim and motion for summary judgment, based on Young's losses arising from the abandonment and reletting of the premises at a loss.
The circuit court on November 16, 1972, entered an order, final in form, striking said fourth amended complaint with prejudice, the cause to continue, as to Young's counterclaim for damages for failure to continue as a paying tenant, etc. The plaintiff's appeal is from this order.
Although the briefs do not clearly define the issues, by distillation they appear to be as follows:
First Is the lessee here estopped from challenging the lessor's title to the described premises?
Second Assuming that the lessor himself has no title and that the lessee is no longer estopped from challenging his lessor's title, is the lease here nevertheless enforceable by the lessor against the lessee as a contract to pay rent because it is signed by both parties?
Third Assuming that the lessor himself has no title, that the lessee is no longer estopped from challenging the lessor's title and that the fact that both parties signed does not ipso facto render the lease enforceable by the lessor against the lessee has the Statute of Frauds here been satisfied by the signature of the lessee Freed as "the party to be charged"?
Fourth Assuming that the lease is otherwise enforceable, does the fourth amended complaint sufficiently allege facts constituting a constructive eviction?
• 1 Passing now to the first of these issues, it has long been established in Illinois, as elsewhere, that when a lessee goes into possession of the premises described he is thereby estopped to challenge his landlord's title and will not be permitted to prove title in another, or even in himself. This applies to actions for the possession of the premises, for past due rent, etc. See 49 Am. Jur. Landlord and Tenant, §§ 109, 110, 120, 121, 125, 126; ...